Limitations on Political Rights of Refugees and Asylum Seekers in South Africa: Perspectives from International Law
On January 1, 2020, South Africa’s Home Affairs Minister Aaron Motsoaledi announced the introduction of new regulations which could have significant implications for engagement in any political activity by refugees or asylum seekers in the country.
The new regulations, entitled The Refugees Act 1998 (Refugee Regulations) 2019 (the “Regulations”), rescind the rights of refugees in South Africa to engage in any political activity, even activity concerning their country of origin while in South Africa. Regulation 4(1) is of particular concern and the focus of the following discussion. It provides that a refugee or asylum seeker shall not participate “…in any political campaign or activity related to his or her country of origin or nationality whilst in the Republic without the permission of the Minister.” Additionally, Regulation 4(2) states that “[n]o refugee or asylum seeker may participate in any political activity or campaign in furtherance of any political party or political interests in the Republic.”
During the public hearings on these amendments, it was announced that the Regulations were introduced because of the “…need to ensure national security through admission of genuine refugees and not bogus asylum-seekers and through protection against those who abuse the asylum-system, including the possibility of using the asylum system as a route for human trafficking.”
Contrary to the justifications provided by the South African government, the Regulations present two main issues which will be discussed in this article. First, the phrase “political campaign or activity” is not defined and remains too vague. Second, a total ban on political activities of refugees is in violation of international human rights law.
The Provisions in the Regulations are too Vague to be Enforceable
The first issue with the Regulations is that the phrase “political campaign or activity” is not defined. The lack of any definition in such circumstances necessarily renders the statute vague, which is more often than not prohibited by procedural and constitutional norms in democratic jurisdictions, including South Africa. The vagueness of this provision casts a wide net, having the result that refugees or asylum seekers (or indeed any advocates assisting them) cannot gauge in any way the type of activities they can or cannot engage in.
Sally Gandar, head of advocacy at the Scalabrini Centre of Cape Town, has expressed concerns about the lack of a definition for the term “political activity,” commenting that: “We believe that it is far too broad and vague to be enforceable. Laws should ensure certainty; this one does not. The minister has said that what they meant by the term is the same as what is stated in Article 23(2)(i) of the African Charter on Human and Peoples’ Rights. However, that Article refers to ‘subversive activities.’ If this is the case, the regulations should have been drafted to specify this. In their current form, they do not.”
However, measures aimed at preventing “subversive activities” do not usually include a full prohibition which applies only to an entire minority section of a whole country based on nationality (refugees and asylum seekers in this instance). Furthermore, to consider “political activity” to mean, or even be similar to “subversive activities” suggests that “subversive” is synonymous with “political,” which would be an absurd (and a very problematic) interpretation.
Hence, it is difficult to see how the South African government will be able to enforce such a vague provision.
The New Amendments Could be in Violation of International Law
Second, it is not likely that the Regulations’ total ban on political activities of refugees – supposedly to prevent the admission of bogus asylum speakers – can be justified under international law.
The United Nations Human Rights Committee (“HRC”) has previously rejected State arguments that restrictions are necessary to prevent “subversive activities” where such information is unsubstantiated. In Pietraroia v. Uruguay, the HRC stated that: “Bare information from the State party that [X] was charged with subversive association… is not in itself sufficient, without details of the alleged charges and copies of the court proceedings.”
The political restrictions are also contrary to the rights guaranteed by the International Covenant on Civil and Political Rights (“ICCPR”), specifically, Art. 19 (right to hold opinions without interference), Art. 21 (right of peaceful assembly), and Art. 26 (prohibition on discrimination). The HRC has further stated that “[aliens] have the right to freedom of thought, conscience and religion, and the right to hold opinions and to express them. Aliens receive the benefit of the right of peaceful assembly and of freedom of association.” Express recognition was afforded to refugees and asylum seekers (as opposed to aliens generally) by the HRC when it stated that the rights in the ICCPR “must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers [and] refugees.”
So, while the ICCPR does not explicitly state that it applies to categories of non-citizens, a body of the United Nations has expressly said that nationality or country of birth is irrelevant save for the few rights which are reserved for citizens. Additionally, the wording used throughout the ICCPR aids in showing that the provisions of the ICCPR apply to all persons irrespective of their nationality or immigration status. Article 2 of the ICCPR, for example, states that any State party to the ICCPR must respect and ensure to “all individuals within its territory” that the rights recognised in the ICCPR can be availed of without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, or “birth or other status.”
Similarly, the general prohibition on discrimination outlined in Art. 26 of the ICCPR is equally applicable due to its wording, referring to “[a]ll persons” being equal before the law and entitled to equal protection of the law without discrimination “…on any ground such as race, colour, sex, language religion, political or other opinion, national or social origin, property, birth or other status.” In this respect, the HRC has said as far back as 1986 that, as a general rule, “…each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens must receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed by the Covenant.”
With this in mind, it is difficult to see why limiting the political activities of refugees in South Africa would be considered a national security or public order issue, or a moral or health concern within the meaning of Art. 19. Art. 19(1) of the ICCPR provides that everyone shall have the right to hold opinions without interference, and Art. 19(2) expands on this right further, stating that every person shall have the right to freedom of expression “…regardless of frontiers, either orally, in writing or in print, in the form or art, or through any other media of his choice”. Article 19(1) can only be limited in situations expressly contained within Art. 19(3), such as for the purposes of protecting the rights of others and/or nationality security, public order (ordre public), public health, or morals.
The reference to “any political activity” in Reg. 4(2) of the Regulations – and the total absence of a definition for such activity – has the clear potential to encompass protests, which are inherently political in nature and protected by Article 21 of the ICCPR. This can only have the effect of infringing both Art. 19 and Art. 21 of the ICCPR. The restriction of political activity from refugees or asylum seekers in South Africa should certainly fall foul of the oft-cited requirement that such restrictions are necessary and proportional in a democratic society.
Showing that such restrictions are objectively necessary in a democratic society for the purposes of the ICCPR will be difficult due to the prohibition acting as an outright ban on “any political activity,” aimed solely at a minority section of the entire country. The Regulations give no indication of why such a sweeping provision is necessary aside from the above quotation from Sally Gandar with respect to “political activity” purporting to have the same meaning as “subversive activities,” according to South Africa’s Home Affairs Minister.
If the goal is to prevent the admission of bogus asylum seekers, why is an outright ban on any political activity necessary in the manner outlined in the regulations? More particularly, if South Africa has already assessed and given refugee status to a non-national, how can a ban aimed at “bogus asylum-seekers” and national security still be relevant to that refugee, and thus justify limiting that refugee’s freedom of expression? If the South African authorities are so concerned with refugees or asylum seekers engaging in political activity such that it poses a national security threat, there are mechanisms within the Refugee Convention (i.e., the exclusions in Article 1F) to have such matters legitimately considered. It is unnecessary to impose blanket limitations on generic grounds not justified under the ICCPR.
It is clear that non-citizens, including refugees, can rely on the protections within the ICCPR, but why is it important to afford them civil and political rights? Freedom of expression and assembly are indispensable conditions for fulfilment of all individuals regardless of nationality and are essential for any properly functioning democratic society. As the HRC has explained, freedom of expression is “…a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.”
There is perhaps an irony in any disingenuous purpose behind limiting refugees from expressing any opinions in a host State. In today’s society – with the rise of right-wing governments and anti-immigrant sentiment around the world, including South Africa and in Europe – limiting civil and political rights of refugees may be aimed at, inter alia, reducing their ability to integrate, thus operating as a push-factor to prevent future movement across borders. However, if the persons best suited to speak about the experiences which pushed them to cross borders in the first place cannot speak up, how can other nations expect to hold persecutory harm to account to prevent such cross-border movement being necessitated?
Without access to political speech, how can refugees provide first-hand accounts of human rights breaches occurring in their home country? Without giving a voice to those directly impacted by human rights violations, such breaches will go underreported and evade the global eye. In those circumstances, they will inevitably persist. The new Regulations in South Africa indirectly enable human rights breaches in other countries, while simultaneously and directly breaching international human rights of non-citizens within its borders, all under the guise of preventing “subversive activities.”
As observed by the South African Constitutional Court, refugees are a vulnerable group in society; they ought to be empowered and be able to speak about their experiences, particularly if they wish to engage in political discussion regarding the authorities in their home country while they are in the safety of a host State. The value of being able to express one’s political opinion, regardless of borders and of citizenship, can never be underestimated.
[*] B.A., LL.B., LL.M (Immigration Law) Candidate ’21 at Queen Mary University of London (“QMUL”), and Founder and President of the Immigration and Asylum Law Society at QMUL. Legal Panel Member (Asylum adjudication) with the International Protection Office in the Department of Justice, Ireland. Any and all views expressed herein are those personal to the author only and are not those of the Department of Justice or otherwise indicative of Department or Government policy.
 Refugees Act No. 130 of 1998; Refugees Regulations 2019, GN R.1707 of GG 42932 (27 Dec. 2019).
 Id. at Reg. 4(2).
 Parliamentary Monitoring Group, Meeting Summary of the Refugees Amendment Bill [B12-2016] public hearings (24 Jan. 2017).
 Tania Broughton, SA’s New Refugee Regulations Could Have Been Drafted by Trump, Says Activist, Times Live (Jan. 17, 2020), https://www.timeslive.co.za/news/south-africa/2020-01-17-sas-new-refugee-regulations-could-have-been-drafted-by-trump-says-activist/.
 UNHRC, Communication No. 44/1979, Pietraroia v. Uruguay, U.N. Doc. CCPR/C/OP/1, at ¶ 15 (Mar. 27, 1981).
 UNHRC, General Comment No. 15: The Position of Aliens Under the Covenant, U.N. Doc. HRI/GEN/1/Rev.1 at 18 (1994), at ¶ 7 (Apr. 11, 1986) http://hrlibrary.umn.edu/gencomm/hrcom15.htm.
 UNHRC, General Comment No. 31: Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, at ¶ 10 (Mar. 29, 2004) https://www.unhcr.org/4963237716.pdf.
 Due to the purposive manner of interpretation applied to international human rights instruments, the inclusion of “birth or other status” in Article 2 may lend itself to include nationality or citizenship. In any case, the list of grounds provided in Article 2 is clearly not exhaustive (by the inclusion of “such as … or other status”) and may, therefore, include nationality and citizenship in a particular case. This can equally apply to the general prohibition on discrimination in Article 26 of the ICCPR.
 UNHRC General Comment 15, supra note 7 at ¶ 2.
 UNHRC, General Comment No. 34: Freedoms of Opinion and Expression, U.N. Doc. CCPR/C/GC/34, at ¶ 3 (Sept. 12, 2011).
 Kristi Ueda, They Have Robbed Me My Life of My Life, Human Rights Watch (Sept. 17, 2020) https://www.hrw.org/report/2020/09/17/they-have-robbed-me-my-life/xenophobic-violence-against-non-nationals-south.
 Union of Refugee Women v. Director, Private Security Industry Regulatory Authority 2006 (4) SA 395 (CC) at para 19 (S. Afr.) http://www.saflii.org/za/cases/ZACC/2006/23.html#sdfootnote30sym.